Important Notice for Amateur Athletes
You are responsible for ensuring that your use of or participation in the activities of this Website does not affect your eligibility as an amateur athlete. Please check with your amateur athletic association for the rules that apply to you. TBG IS NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF THE WEBSITE RESULTING IN YOUR INELIGIBILITY AS AN AMATEUR ATHLETE.
Ownership of content
The Site is owned and operated by TBG. All of the content featured or displayed on the Site (except for User Generated Content), including, but not limited to, text, graphics, photographs, images, moving images, sound, illustrations and software (“Content”), is owned by TBG International Pty Ltd and its group of companies (herein after in this document ‘TBG’), its licensors and/or its content providers. All elements of TBG’ websites (except for User Generated Content), including, but not limited to, the general design and the content, text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights and is the proprietary property of TBG; All rights reserved. Except as explicitly permitted by applicable copyright laws or under this or another agreement with TBG, no portion or element of the Site or its Content may be copied, reproduced in any form or retransmitted via any means and the Site, its content and all related rights shall remain the exclusive property of TBG or its licensors unless otherwise expressly agreed.
Copyright and Trademarks
All copyright featured or displayed on the Site is owned by TBG (except for User Generated Content). Except as may be otherwise indicated in specific documents within the Site, you are authorized to view, play, print and download documents, audio and video found on the Site for personal, informational, and non-commercial purposes only. Except as permitted by applicable copyright laws, you may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Site. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Site. For purposes of these terms, the use of any such material on any other website or networked computer environment is prohibited. You will not remove any copyright, trademark or other proprietary notices from material found on the Site.
In the event you download software (including but not limited to screensavers, icons, videos and wallpapers) from the Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by TBG. TBG does not transfer title to the Software to you. You own the medium on which the Software is recorded, but TBG retains full and complete title to the Software, and all intellectual property rights therein. Except as permitted by applicable copyright laws, you may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
All trademarks, service marks and trade names of TBG used herein (including but not limited to: the word mark “TBG”, “the TBG logo”, “the X solus device) are trademarks or registered trademarks of TBG or its affiliates, unless stated otherwise. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify TBG trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Site, without TBG’s prior written consent. The use of TBG trademarks on any other website or network computer environment, for example the storage or reproduction of (a part of) the Site in any external internet site or the creation of links, hypertext, links or deep links between the Site and any other internet site, is prohibited without the express written consent of TBG.
DISCLAIMER OF WARRANTIES
TBG IS NOT RESPONSIBLE OR LIABLE FOR ANY USER GENERATED CONTENT OR OTHER CONTENT POSTED ON THE WEBSITE OR FOR ANY OFFENSIVE, UNLAWFUL OR OBJECTIONABLE CONTENT YOU MAY ENCOUNTER ON OR THROUGH THE WEBSITE. THE WEBSITE, USER GENERATED CONTENT, CONTENT, AND THE MATERIALS AND PRODUCTS ON THIS WEBSITE ARE PROVIDED ‘AS IS’ AND EXCEPT TO THE EXTENT REQUIRED BY LAW, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF SATISFACTORY QUALITY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW. THE INFORMATION ON THE SITE IS FOR GENERAL INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE ADVICE. TBG CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEBSITE.
TBG DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION AND/OR FACILITIES CONTAINED IN THE SITE ARE ACCURATE, COMPLETE OR CURRENT, OR THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE SITE WILL BE CORRECTED OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. EXCEPT TO THE EXTENT REQUIRED BY LAW, TBG DOES NOT MAKE ANY WARRANTEES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
TBG RESERVICES THE RIGHT TO SUSPEND OR WITHDRAW THE WHOLE OR ANY PART OF THE SITE AT ANY TIME WITHOUT NOTICE WITHOUT INCURRING ANY LIABILITY.
Limitation of liability
YOUR USE OF THE SITE IS AT YOUR OWN RISK. WHERE CONDITIONS AND WARRANTIES IMPLIED BY APPLICALBLE LAW CANNOT BE EXCLUDED, YOU HERBY WAIVE AND TBG LIMITS ITS LIABILITY TO YOU OR ANY PERSON OR ENTITY WHERE AND TO THE EXTENT IT IS ENTITLED TO DO SO. OTHERWISE, NEITHER TBG, NOR ANY OF ITS AFFILIATES, OFFICERS OR DIRECTORS NOR ANY OF ITS AGENTS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SITE WILL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIALINCLUDING, WITHOUT LIMITATION, ANY LOSSES, INJURY, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR US, OR OTHER ECONOMIC ADVANTAGE, OR OTHER DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS ON THE SITE, INCLUDING DAMAGES CAUSED BY VIRUSES OR ANY INCORRECTNESS OR INCOMPLETENESS OF THE INFORMATION ON THE SITE, OR THE PERFORMANCE OF THE PRODUCTS PURCHASED THROUGH THE WEBSITE OR THE CONDUCT OF OTHER WEBSITE USERS (WHETHER ONLINE OR OFFLINE) OR ATTENDANCE AT A TBG EVENT OR ANY USER GENERATED CONTENT, EVEN IF TBG HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF YOUR DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE WEBSITE AND, WILL NOT MAKE AND HERBY WAIVE ANY CLAIM AGAINST TBG FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE WEBSITE.
NO LIABILITY WHATSOEVER (EXCEPT AS PROVIDED BY LAW) WILL BE ACCEPTED BY TBG FOR ANY DIRECT OR INDIRECT LOSS OR DAMAGE RELATING TO DELIVERY OF PRODUCTS OR THE PERFORMANCE OF PRODUCTS PURCHASED THROUGH THE WEBSITE UNLESS THE SAME OCCURS BECAUSE OF THE WILFUL ACT OR DEFAULT OR NEGLIGENCE OF TBG, ITS SERVANTS, AGENTS OR CONTRACTORS IN WHICH CASE LIABILITY IS LIMITED TO AT TBG’S DISCRETION TO THE REPLACEMENT OF PRODUCTS OR THE PAYMENT OF THE COST OF HAVING THE PRODUCTS RESUPPLIED.
Website Use Restrictions
Safeguard Your Username/Password
You are responsible for any actions that take place while using your TBG account. Keep your username/password secure and do not allow anyone else to use your username/password to access the Website. You agree to notify TBG immediately of any unauthorized use of your TBG account. TBG is not responsible for any loss that results from the unauthorized use of your username/password, with or without your knowledge.
User Generated Content
“User Generated Content” is communications, materials, information, opinions, photos, profiles, messages, notes, website links, text information, music, videos, designs, graphics, sounds, and any other content that you and/or other Website users publish, display, upload, disclose, transmit, store, share or otherwise make available (“post”) on or through the Website, except to the extent the content is owned by TBG.
1. PoTBG Rules: User Generated Content and User Conduct
You are solely responsible for your User Generated Content, your interactions with other users and your activity on the Website. Do not take any action or post anything that may expose TBG or its users to any harm or liability of any type.
Stay Constructive and maintain relevance.
Stay on topic and post only constructive comments and questions. Unless the Website feature asks for it, don’t talk about policies, future products, speculations or rumours about TBG and TBG products, or anything else off topic.
Stay Courteous and Appropriate.
Flaming and insults are prohibited. Do not post User Generated Content, or a link to a website, that, in TBG’s sole discretion, is illegal, offensive, libellous, defamatory, infringing, inflammatory, deceptive, inaccurate, misleading, malicious, fraudulent, false, indecent, harmful, harassing, intimidating, threatening, hateful, abusive, vulgar, obscene, pornographic, violent, sexually explicit, invasive of privacy, publicity, intellectual property, proprietary or contractual rights, offensive in a sexual, racial, cultural, or ethnic context, will harm or threaten the safety of others, or is otherwise objectionable. Do not post photos or videos of another person without that person’s consent. Do not “stalk,” intimidate, abuse, harm or harass another Website user or person.
Utilising Private Information.
Do not post personal information, including your email address, IM address, or phone number. Do not collect or solicit personally identifiable information from other Website users or send unsolicited emails or other communications. Do not collect, use or post on the Website the private information of anyone else without their consent or for illegal purposes, including without limitation addresses, phone numbers, email addresses, social security numbers and credit card information.
The Website is not to be used for any commercial purpose. Do not post any advertising, solicitation or commercial content whatsoever on the Website or accept payment from a third party in exchange for your performing commercial activity on the Website. Do not post any User Generated Content that involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming.” Do not use automated scripts to collect information from, or otherwise interact with, the Website.
Do not impersonate any person or entity, including without limitation athletes or TBG employees. Do not misrepresent yourself, your age or your affiliation with any person or entity. Do not register for more than one TBG account, register a TBG account on behalf of another individual, group or entity, or sell or transfer your profile or account. Do not use or attempt to use another person’s account, username or password.
Observe the Law.
Do not post any User Generated Content, take any action or use the Website in a way that violates any law, would create liability or promotes illegal activities. Do not take any action on the Website designed to interfere, disrupt, damage, disable, overburden or limit the functionality of any computer software or hardware, telecommunications equipment or the Website. Do not post User Generated Content that contains software viruses, programs or other computer code. Do not circumvent or modify any Website security technology or software.
2. General Rules for User Generated Content
Pre-screening of Content
TBG does not guarantee to pre-screen User Generated Content. TBG does not guarantee the Website will be free from User Generated Content that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. TBG is merely acting as a passive channel for such distribution and is not undertaking any obligation or liability relating to any User Generated Content or activities of users on the Website. Even in the event TBG chooses to monitor any User Generated Content, TBG assumes no responsibility for, or any obligation to monitor or remove, such User Generated Content. TBG reserves the right to edit, remove, or refuse to post any User Generated Content or terminate your registered account for any reason.
Eligibility and Registration
Rights to Your User Generated Content
Your User Generated Content is not confidential or proprietary. You grant, and warrant that you have the right to grant, to TBG a non-exclusive, non-revocable, worldwide, transferable, royalty-free, perpetual right to use your User Generated Content in any manner or media now or later developed, for any purpose, commercial, advertising, or otherwise, including the right to translate, display, reproduce, change, create derivative works, sublicense, distribute, assign and commercialize without any payment due to you.
Copyright Infringement Complaints
We respect the intellectual property rights of others and we prohibit users from poTBG on the TBG Website any content that violates another party’s intellectual property rights. If you believe that your work has been improperly copied and posted on the website, please provide us with the following information:(1) name, address, telephone number, email address and an electronic or physical signature of the copyright owner or of the person authorised to act on his/her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of where on the Website the material that you claim is infringing is located;(4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner’s behalf. These requirements must be followed to give TBG legally sufficient notice to TBG of infringement. Send copyright infringement complaints to:
Legal Department (Copyright)
OpenID Linked Accounts
TBG may now or later join OpenID, which allows you to automatically sign into the TBG Website at the same time you sign into OpenID. TBG is not responsible for the operation or functionality of OpenID or any OpenID affiliated websites.
The Website contains services and features that are available to certain mobile phones. Your carrier’s normal rates and fees apply. If TBG charges you for a mobile service, you will first be notified and asked to accept any charges. Not all mobile services will work with all carriers or devices. You should check the rates and services offered by your carrier. By using TBG’s mobile services, you agree that we may communicate with you by electronic means to your mobile device and that certain information about your use of these services may be shared with us. If you change or deactivate your mobile phone number, you must promptly update your account information to ensure that we don’t send your messages to a different person.
TBG allows you the option to publish about the actions you take on TBG’s Website to Facebook, Twitter and other social platforms. TBG does not control which information gets disseminated on participating social platforms. You agree to allow TBG to check your TBG cookies when you are visiting participating social platforms, and allow TBG to receive information about your use of those social platforms. You can deactivate this publishing feature on your profile page.
Links to third parties
Misuse of the Site
You are prohibited from using the Site to post or transmit, any infringing, threatening, false, misleading, inflammatory, libelous, invasive of privacy, obscene, pornographic, abusive, discriminating, illegal material or any material that could constitute or encourage conduct that would be considered a criminal offence, violate the rights of any party or which may otherwise give rise to civil liability or violate any law. You are also prohibited from using the Site to advertise or perform any commercial solicitation.
From time to time TBG makes it possible to view and distribute content generated by you, for instance through e-poTBGs and sending postcards to others persons. If you make use of this you acknowledge that TBG only acts as a passive conduit for the distribution and is not responsible and liable for the content of the communications and materials generated by you or other users. TBG reserves the right at its sole discretion to block or remove any communications and materials it believes is not in accordance with these Terms and Conditions, or is otherwise unacceptable to TBG.
User Interaction Disclaimer
You are solely responsible for your interactions with other Website users, whether online or offline in person. TBG is not responsible or liable for any loss or damage resulting from any interaction with other Website users or persons you meet through the Website. You agree to take reasonable precautions in all interactions with other users on the Website, whether online or offline, and conduct any necessary investigation before meeting another person. In addition, you agree to review TBG’s Privacy Tips prior to using this Website. TBG is under no obligation to become involved with any user dispute, but may do so at its own discretion.
Application of TBG’s Terms and Conditions of Trade
These terms and conditions are subject also to TBG’s standard Terms and Conditions of Trade (annexed as Schedule 1) to the extent possible.
TBG maintains the policy of not reviewing or accepting any unsolicited submissions of ideas, inventions, designs and/or other materials whether consiTBG of texts, images, sounds, software, information or otherwise (the “Materials”) from persons external to TBG. You should therefore not post any Materials on the Site or send these to TBG by e-mail or otherwise.
How you can contact us
If you have any questions or comments about the Site or any of our services, please write to us: TBG International, PO BOX 153, Deer Park, Victoria 3023.
Changes to the terms
All orders placed through the website are subject to TBG’s acceptance, which is in its sole discretion. Without limitation, this means that TBG may refuse to accept or may cancel any order, whether or not the order has been confirmed, for any or no reason, in its sole discretion, and without liability to you or any third party. If your credit card, or TBG trading account has already been charged for an order that is subsequently cancelled, TBG shall issue a credit to your credit card or TBG trading account
While we accept most customisation options & wording, we cannot honor every one. Some may contain other trademarks, or the names of certain professional sports teams, athletes or celebrities that TBG does not have the right to use. Others may contain material that we consider inappropriate or simply do not want to place on our products. Unfortunately, at times this obliges us to decline orders for customisation that may otherwise seem unobjectionable. If your order for customization is considered unacceptable, your order will be cancelled and refunded and you will be notified via email. TBG reserves the right to cancel any customisation order after they have been submitted.
Applicable Law and Jurisdiction
Last revised March 2014
TBG INTERNATIONAL PTY LTD
A.C.N. 164 404 148
TERMS AND CONDITIONS OF TRADE
“The Company” means TBG International Pty Ltd ACN 164 404 148 and “Customer(s)” means any person, firm, company, government body or other entity with which the Company contracts to supply goods or services. To the fullest extent legally possible all dealings between the Company and any customer relating to any products and/or services are subject to the following terms and conditions of trade unless otherwise agreed in writing
All orders for goods or services from customers which may be accepted by the Company are accepted on the following conditions (“the Conditions”).
Any conditions of purchase offered by customers which purport to add to or are otherwise inconsistent with the Conditions shall be deemed to be waived by the customer upon placement of an order by the customer with the Company unless such conditions of purchase are expressly agreed to by the Company in writing.
No order accepted by the Company may be cancelled or deferred by the customer without the prior written consent of the Company.
2.Quotations and Published Prices
Quotations issued by the Company are open for the customer to whom the quotation is addressed to place an order within 30 days from the date of quotation (unless a shorter period is expressly provided for in the quotation or the quotation is withdrawn by the Company) .
The issue of a quotation and other publication of price by the Company does not constitute offers to supply.
The Company reserves the right to vary the prices charged from time to time without prior notification.
Published prices are (unless otherwise indicated) provided in Australian Dollars (AUD) for the sale of goods FOB and are exclusive of any applicable goods and services tax and any applicable taxes and duties and costs and charges associated with the delivery of goods. Such items shall be included in the invoiced price.
Where credit facilities have been approved by the Company, payment for goods and services shall be due and payable within 30 days of the date of invoice.
The Company may charge interest on any overdue payments at the rate of 5% per annum above the corporate lending rate published from time to time by the Company’s bank for the length of any such delay in payment. The Company reserves the right to withhold further deliveries of goods or the provision of services until all arrears from the customer have been paid.
The customer shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by the Company and/or its agents in respect of the customer whether relating to any debt, possession of products and/or otherwise.
The Company reserves the right to terminate the customer’s credit facility at any time and to require full or part payment with order or prior to delivery.
Where credit facilities have not been approved, payment for goods and services shall be due and payable on delivery.
5.Minimum Order Value – The Company reserves the right to require orders to be for a minimum value determined by the Company from time to time and to otherwise accept in whole or in part any orders for goods or services by customers or to decline such orders.
6.Delivery – Whilst the Company endeavours to effect deliveries or execute orders by the requested date, the Company shall not be liable for any loss or damage whatsoever (including, without limitation, consequential loss or damage) caused directly or indirectly by any delay or failure to deliver. The Company reserves the right to make delivery in instalments and to invoice each instalment as a separate order.
7.Supply and Delivery
Unless other terms of supply have been agreed and accepted by the Company in writing on an order by order basis, the customer will pay for the costs associated with the delivery of goods to the customer;
Delivery of, and transfer of risk of loss and damage to, goods to the customer shall be deemed to take place:
(a) in the case of goods supplied by the Company from Australia for supply in Australia upon delivery of the goods to the customer’s designated premises in Australia specified in the respective order accepted by the Company in writing;
(b) in the case of goods supplied by the Company from Australia for supply outside of Australia , when the goods have passed the ship’s rail at the port of shipment in Australia;
(c) in the case of goods supplied by the Company from outside of Australia FOB or CIP (as the case may be), when the goods have left the Company’s, manufacturer’s or agent’s premises for delivery to the customer; or
(d) as may otherwise have been agreed and accepted by the Company in writing on an order by order basis.
The Company shall not be responsible for any loss or damage to goods in transit or otherwise once they have been delivered to the customer as set out in 7.2.
If the customer has not made or notified the Company of arrangements for delivery, the customer hereby authorises and requests the Company to nominate a carrier to take delivery of the goods from the Company on behalf and at the risk of the customer.
Arrangements for insurance of the goods are the responsibility of the customer.
Where the Company nominates a carrier on behalf of the customer, all freight and other delivery charges will be billed to the customer.
Signature of any delivery note by any agent, employee or representative of the customer (or where delivery is to the customer’s carrier, by such carrier or its agent) shall be conclusive proof of delivery.
8.Shortages – Claims for shortages in delivered quantity of goods must be made in writing within 7 days of receipt of goods and any shortages must be indicated on the delivery note at the time of delivery, failing which any such claim shall be deemed to be waived by the customer.
9.Goods Return Policy
Goods may only be returned if they are damaged upon delivery, oversupplied or not the ordered goods. Customers wishing to return goods must notify the TBG International Customer Service department within 7 working days of delivery of goods, failing which the basis for any such claim for return shall be deemed to be waived by the customer.
No claims for damage or loss will be entertained unless the goods are noted as being “damaged” on the delivery note and the claim has been made within 7 days of delivery of the goods.
Goods damaged in transit for which the Company is responsible for providing or contracting for carriage must be notified to the Company and the carrier within 3 days of receipt of goods by the customer and the goods must be noted as being “damaged” on the transport delivery sheets. Goods must be retained with all wrappings, cartons and other items which they were originally supplied with by the Company pending instructions from the Company. The Company cannot institute or assist the customer with a claim on the carrier until the goods have been inspected by the Company.
The Company may (but is not obliged to) accept goods that are not damaged, oversupplied or not the ordered goods for return on terms and conditions determined by the Company in its absolute discretion.
Before any goods may be returned customers must telephone TBG Customer Service department for authorisation of a Return Authority Number (RAN) number.
Goods must be returned by and at the customer’s expense in their original packaging and the RA number must be clearly marked on the outside of the box or other packaging in order for goods to be accepted by the Company’s warehouse staff. The issue of an RA number and acceptance of returned goods by warehouse staff does not constitute acceptance by the Company of the customer’s claim for return.
Goods returned without an RA number will not be accepted by warehouse staff and will be returned to the customer at the customer’s expense.
To the extent permitted by law, the warranty as provided for in this Clause shall be in lieu of and to the exclusion of any warranty, condition or liability express or implied by law in respect of the description, quality, suitability or fitness for any particular purpose of goods or otherwise, and the Company shall not be under any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the supply or use of the goods or from any services provided, including (without limitation) consequential loss or damage arising from claims by the customer, third parties or otherwise.
If rights are conferred upon the customer or obligations are imposed upon the Company by certain Federal or State legislation (“the said legislation”) which cannot be excluded, the provisions of this Clause shall be read subject to those rights or obligations and subject to the Company’s Standard Warranty for the period applicable to specific Products. Details of the Company’s Standard Warranty and the schedule of periods applicable are available upon request by contacting our customer service by email customerservice@TBGsports.com
To the extent permitted by the said legislation the Company hereby expressly limits its liability to:
(a) in the case of goods covered by the Company’s Standard Warranty, any one of the following (at the Company’s discretion):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the costs of having the goods repaired;
(b) in the case of goods not covered by the Company’s Standard Warranty the customer may elect one of the following:
(i) at the written request of the customer, the supply of a quotation for the repair of the Product, and if the quotation is accepted in writing by the customer, the repair of the Product at the customer’s expense; or
(ii)if the customer elects in writing for the Product to be returned to the customer without repair, the return of the Product at the customer’s expense.
The Company’s policy is one of continuous development, and the Company therefore reserves the right to improve, alter or discontinue specifications without prior notice. All illustrations and samples are intended as approximate representations only and are not binding in detail with regard to finishes, colour and shades and specifications. The Company accepts no liability whatsoever for any loss or damage (including, without limitation, consequential loss or damage), directly or indirectly, arising out of or in connection with same.
In the event the customer provides the Company with specifications for the manufacture or sourcing of goods by the Company for the customer, the customer warrants to the Company that the specifications and any goods manufactured, sourced or otherwise supplied by the Company based on the said specifications will comply with all applicable laws relating to the manufacture and supply of such goods and not infringe the copyright, patent, design, other intellectual property rights or other rights of any third party, and the customer shall indemnify and keep the Company fully indemnified from and against any and all claims, liabilities, obligations, expenses or damages the Company may suffer or incur as a result of the use by the Company of the said specifications or the manufacture, sourcing or supply of goods based on the said specifications.
13.Installation and Use
Installation of goods by the Company is not included unless otherwise specifically indicated by the Company in writing. The Company takes no responsibility for the installation of goods other than goods which are installed directly by the Company.
The Company shall not be responsible or liable for any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the improper installation of goods or the use of such goods (by the customer or any third party), including (without limitation) consequential loss or damage arising from claims by the customer, third parties or otherwise, and the customer shall indemnify and keep the Company fully indemnified from and against any and all claims, liabilities, obligations, expenses or damages the Company may suffer or incur as a result same.
14.Product resale – The customer is permitted to sell the Company’s products in retail stores or online provided the products are sold and shipped within Australia only. No product is to be shipped to purchasers outside Australia without the prior written consent of the Company.
The customer acknowledges and agrees that the right, title and interest in any intellectual property owned by the Company shall at all times remain the property of the Company.
The company grants to the customer a revocable, royalty free licence to use the Company’s intellectual property (including the trade mark ‘TBG’) in connection with the promotion and sale of the Company’s products only.
Any advertising and promotional material (such as point of sale advertising in relation to the products or any promotions run from time to time) must be used by the customer in the form in which is it provided, without alteration, and displayed prominently so as to serve its purpose.
The Company’s intellectual property may be altered or incorporated with the customer’s own intellectual property for the purposes of marketing and promotion subject to the Company’s prior written approval.
The customer acknowledges that the right, title and interest in any adaptation, modification or derivative of the Company’s intellectual property developed in accordance with clause 15.4 is owned by the Company.
Except to the extend required by law, neither party will make public, disclose or use for purposes other than for the purposes of this agreement, the confidential information of the other, unless prior written approval is provided.
Each party will take all reasonable steps to secure and keep secure the other party’s confidential information coming into its possession or control.
For the avoidance of doubt, confidential information includes the following:
(a) Information marked as confidential;
(b) Information, drawings and samples pertaining to the Company’s product;
(c) Information in relation to sales, order, quantities, prices, quotations or any other information in connection with this agreement; and
(d) Information which by its nature is either confidential or should reasonably be regarded as confidential to the party to whom it belongs or relates.
Title to and property in goods supplied by the Company shall not pass to the customer until the Company has received payment in full of the price of all goods supplied by the Company to the customer at any time and the customer has discharged all exiTBG indebtedness to the Company, whether for the price of the goods supplied or for any other amount which may be owing by the customer to the Company on any other account (some of which may not necessarily be due for payment); provided however that the customer shall bear the risk of any loss or damage to or deterioration of the goods from whatever cause arising following delivery of the goods to the customer in accordance with Clause 7.
Until the price for the goods has been so paid:
(a) The customer shall store the goods in such a place and manner that they are clearly identified as the property of the Company which the customer is holding as the Company’s bailee.
(b) The customer may resell the goods in the ordinary course of its business (but may not otherwise sell or encumber the goods) and if it does so shall receive the proceeds of resale as trustee of the Company, and shall hold such proceeds as such. The Company shall be entitled to trace the proceeds of resale.
(c) The Company shall have the right, at any time and without prejudice to any other remedies:
(i) to enter without prior notice any premises where the goods may be without liability for trespass or any resulting damage, and to repossess any of the goods; and
(ii) to require the customer not to resell or part with possession of, otherwise dispose of, charge or otherwise encumber the goods until payment is made in full.
The Company’s right to retain title of goods shall not affect its right as unpaid seller.
18.Personal Property Security
The parties acknowledge that during the term of the parties’ relationship the Personal Property Securities Act 2009 (PPSA) will be introduced and the PPSA register will commence. Upon the commencement of the PPSA, this clause 18 will replace clause 17.2.
The customer acknowledges and agrees with the Company that:
18.2.1 This agreement constitutes a security agreement for the purposes of the PPSA; and
18.2.2 The Company may at its discretion register a financing statement in respect of any security interest created by this agreement; and
18.2.3 a security interest is taken in all of the Company’s products previously supplied by the Company to the customer and all products that will be supplied in the future by the Company to the customer during the continuation of the parties’ relationship.
The customer undertakes to sign any documents and provide any information which the Company may reasonably require to register a financing statement or a financing charge and statement on the PPS register.
Each party is to bear its own costs and expenses incurred in relation to the registration of the financing statement of financing charge.
Before full payment has been received for the Company’s product, the customer must separately store the product and clearly mark them to show that they are the property of the Company.
For the purposes of the PPSA and to the extent permitted by law:
18.6.1 Section 95, 132(3)(d), 132(4) and 143 of the PPSA have no application to these arrangements; and
18.6.2 the Company is not required to give notice under section 135 of the PPSA.
If prices published by the Company or included in an order by a customer do not expressly indicate that the prices include GST (in the case of an order by a customer, by express reference on the face of the order and not by incorporation or reference of conditions of purchase), then the customer will be required to pay the Company the amount of the price for goods and services plus GST and the following provisions of this Clause 15 shall apply.
The consideration payable by the customer for goods and services represents the value of any taxable supply for which payment is to be made. If a taxable supply is made to the customer, then the customer must also pay at the same time and in the same manner as the value is otherwise payable the amount of any GST payable in respect of the taxable supply.
Expressions used in this Clause 15 bear the same meaning as those expressions in the A New Tax System (Goods and Service Tax) Act 1999 (as amended).
20.Force Majeure – The Company shall not be liable for any direct or indirect loss arising from non-delivery or delay in delivery of any goods caused by act of God, riot or civil commotion, strike, lock out, fire, flood, drought, act of government, failure to obtain or shortages of raw materials or any cause whatsoever beyond its control.
These Conditions are subject to variation by the Company by notice in writing to the customer. Any such variation is deemed to have been accepted by the Customer;
The failure of the Company to enforce or exercise at any time or for any period of time any term of any contract incorporating these Conditions shall not constitute or be construed as a waiver of such term and shall in no way affect the Company’s right thereafter to enforce or exercise same;
Any provision of these Conditions which is or becomes prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective and severed to the extent thereof without invalidating any other provision of these Conditions, and any such prohibition or unenforceability shall not invalidate such provision in any other jurisdiction.
These Conditions and any contract entered into between the Company and the customer shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and the customer hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of the State of Victoria, Australia and of any Courts which may hear appeals therefrom; provided however that these Conditions and any contract entered into between the Company and the customer may also be enforced by the Company against the customer in any other jurisdiction anywhere in the World.
The customer irrevocably authorises the Company and its servants and agents to make such enquiries from time to time as the Company may deem necessary to obtain information and/or to investigate the creditworthiness of the customer including enquiries with persons nominated as trade references bankers of the customer any other credit provider, any credit reporting agency any land titles office the ASIC, ITSA and/or any similar body and/or related information service( “ the Sources”) and including personal credit and consumer credit information and any property, business and/or solvency information. The customer by this clause irrevocably authorises the Sources to disclose anything about the customer which is in the Sources’ possession and the customer agrees that the Company may disclose any information it has about the customer to any interested person (subject only to any obligations the Company may have under the Privacy Act 1988 ( Cth).
As security for payment to the Company of all monies payable by the customer, the customer does hereby charge in favour of the Company all of the customer’s interest in freehold and leasehold property both current and later acquired.
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